How it works - Civil laws

Scope of e-Court :

e-Court handles civil matters common to medium size & small businesses and individuals in accordance with either the common law and/or the civil-law tradition in the Netherlands. e-Court shall not consider bankruptcy law, criminal matters, fiscal and administrative matters.

Some areas covered by e-Court are ( not inclusive ):

• Property - boundary disputes, trespass
• Work-related disputes - unfair dismissal, personal injury
• Defamation of character
• Consumer disputes - Faulty goods, 'trades description' offences
• Intellectual Property Law
• Contract Law
• Construction Law
• Family Law & Divorces
• Business Law
• Environmental Law
• Entertainment Law
• Immigration
• Insurance
• Sports Law
• Trusts & Estates
• Wills & Probate

Is the area relative to your situation not mentioned above? Send us an email via
info@e-court.co.nl or call the Service Desk.

Civil Law is the section of the law that deals with disputes between individuals or organisations. For example, when in a car crash a victim claims damages against the driver for loss or injury sustained in the accident, or one company sues another over a trade dispute.

Unlike criminal offences, any sentence, custodial or otherwise result usually in financial compensation. Civil law has developed in a similar way to the way criminal law has, through a mixture of statutory law made by governments, and 'precedent' which is created by earlier cases.

An example of how precedent creates law is the law of 'negligence.' In the first 'negligence' case a woman developed gastro-enteritis after swallowing a snail contained in a bottle of ginger beer. Lord Atkin, the judge who heard the case, decided that she was entitled to some form of compensation. He ruled that the manufacturer had a 'duty of care' towards its customers and in this instance had been negligent - and the law of 'negligence' was created.

Burden of proof: one crucial difference between civil and criminal law is that the 'burden of proof' is lower in a civil case. A criminal case must be proved 'beyond reasonable doubt.' A civil case only has to be proved on the 'balance of probabilities,' i.e. it is 'likely' that the defendant is guilty.

Where Dutch Legal System comes from ? :

1. The common-law tradition - Legal System of Civil Law in the Netherlands

Foundation of Dutch civil law

Basics of Dutch civil law in comparison with other legal systems

Explaining a legal system to someone from a foreign country is difficult. Not only because of the language differences, but because it's often not possible to give a correct translation. A legal term in one country simply has a different meaning in another, as it's embedded in an autonomous legal system, in which it has its own position, with its own specific significance. Although the law can be regarded as a conversion of thoughts and developments in society, it is still a purely man made instrument. In contrast, for example, to mathematics, physics or chemistry, it can't fall back on objective facts which are the same everywhere. Just a few basic principles can be found in each legal system. For example: all humans, irrespective of their culture, religion or race, wish to own something for themselves. And they also want to be able to provide for the wants of their next of kin. In every culture it's a common belief that one should keep his promise and that the impact of wrongful behaviour must be repaired by means of (financial) compensation. All these main points have to be regulated in a fair and clear system, that is reliable for everyone.

These main points - these wanted legal effects - are in the most (western) countries the same. But the way to achieve them, varies, because the beginning point, formed by each country's own history and political and social developments, is so different. The legal foundation, grown in the course of centuries from every country's independent cradle, is therefore diverse. For this reason it's very difficult to transfer a certain legal term from one legal system to another, even when at first sight an appropriate translation seems to be present. This translation, however, only reflects a superficial meaning. On the surface a specific term, used in a foreign legal system, seems to indicate the same right or juridical act as in the legal order with which one is familiar. But looking closer, one will notice that in fact it's something else. So a translation to the letter may put someone easily on the wrong track. That’s why, when studying a foreign legal system, it's always important to stick to the meaning that a certain term has within that foreign system itself and put aside the meaning of the term in another legal system. For this reason the most important legal structures and terms of Dutch civil law are explained on this Internet site. The definition of their meaning only applies within Dutch law. Again: be aware that you must let go the meaning which is so well-known to you within the legal system of your own country. You are easily fooled. When you're not certain, always examine which meaning a used term exactly has according to Dutch law.

Especially lawyers from another civil law country, like France, Italy or Germany, will easily fall into the before-mentioned trap, because the used terms are so recognizable. But also lawyers from Anglo-American countries should be on their guard for misinterpretations. Indeed, they encounter in Dutch law often terms with which they have no experience, so they won’t be tempted to trust on the meaning that these words have had for them so many years. But the system of civil law (private law) is so different from common law that it's hard to place the term or subject in the right context. The same applies of course to lawyers from a civil law (continental) country studying Anglo-American law.

It is therefore, when reading the pages of this Internet site, of vital importance to keep the accompanying definitions always in mind. When these words or terms are used on this Internet site, they always mean what is described in these definitions, nothing more, nothing less, irrespective of how they could be translated otherwise or of their meaning in another legal system. Some terms are also defined in the Dutch Civil Code. This legal definition is not always adopted, but now and then replaced by a more general meaning, if this seemed to be more appropriate in view of a general comment on the Dutch legal system.

Continental Law and Anglo-American Law

Worldwide there are, at least in the Western world, two mainstreams of private law systems: civil law, also known as continental law, and common law, also described as Anglo-American law.

Generally one could say that an Anglo-American law system exists in England, Ireland, the United States, Canada, Australia and New Zealand. But it also appears in the former British colonies in Asia and Africa, like India, Pakistan and Malaysia. All other countries outside the Arabic world, for instance those in continental Europe (France, Spain, Italy, Germany, Belgium and the Netherlands) and its former colonies in Asia, Africa and South America, have a continental law system. Continental law (or Romano-Germanic law) is the predominant system of law in the world, although Anglo-American law plays a major part too, since Britain was, and the United States of America are, the leading economic power of the world.

Continental law as a legal system is often compared with Anglo-American law. The main difference between both systems is usually described as follows.

Within a continental law system there is a body of written law, issued by Parliament, such as codes and statute law, that must be applied by judges to each individual case. The assumption is that statute law regulates all cases that could occur in practice, and when certain cases are not regulated by statute law, the courts should, in order to fill up the gap, apply the general principles on which a comparable statutory provision of the Civil Code is founded. In an Anglo-American law system such a body of written codes and statute law, issued by Parliament, is absent, but instead there is a less coherent foundation of certain judgments which apply because they have been developed over hundreds of years as the legal precedent. In an Anglo-American law system abstract legal rules, which have meaning for all similar situations in future, are drawn from specific cases by means of judge-made law. The ruling in a specific case sets the legal standard. As of that moment this rule has to be followed by all other (lower or equal) courts, until a higher court gives a dissentient judgment. But then this new judgment again sets the abstract legal rule which, as of then, has to be observed by all courts. The courts are very reluctant to rule differently. They will nearly always follow an earlier given judgment, even when it is issued decades ago. This method is indicated with the Latin term ‘stare decisis’. A continental law system, on the other hand, starts with abstract legal rules, established by Parliament, which immediately have to be observed by all courts, high and low, when making a judgment in a specific case. In theory the judges aren’t bound by earlier judgments of higher or lower courts, but only by the law issued by Parliament. This means that Parliament can always set aside a not wanted judgment of a court by enacting new legislation.

In reality the differences between both systems aren’t so apparent. In Anglo-American law the government enacts a lot of statutes too, even on the field of civil law. The rules of these statutes have to be followed by court, also when they’re in contradiction with earlier judgments. In such cases statute law precedes and forms the precedent. In continental law systems it’s clear that not every detailed situation can be literally incorporated in a statute or code. So the courts often have to decide themselves on the grounds of granted discretion how the situation must be solved within the system of law. And in every continental law country the lower judges, as a rule, follow the earlier judgments of higher courts, especially of the Supreme Court. So also in continental law systems, as far as the statutes don’t provide a legal rule, the law is made by judgments of various courts, at least until Parliament passes a different act.

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